STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KENNETH C BIRNSCHEIN, Applicant

EMERSON ELECTRIC COMPANY, Employer

EMERSON ELECTRIC COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999025562


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed July 10, 2001
birnske . wsd : 175 : 3  ND § 8.24 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION


The employer's asserts in its petition for commission review that the administrative law judge erred in determining that applicant suffered a work related occupational disease injury on October 3, 1997, to his left elbow as a result of his work for the employer. The employer contends that Dr. Lewis failed to submit credible evidence to support his claim for an occupational left elbow injury. The employer states that Dr. Lewis's WC-16-B was insufficient to establish a claim for workers compensation occupational injury since he checked all three causation boxes on the WC-16-B, and therefore his assessment was inherently contradictory, and the applicant has failed to sufficiently establish his case. However, Dr. Lewis's report included an attached treatment note from December 29, 1997, indicating that the applicant was first seen on December 3, 1997, for left elbow pain and he gave a history of having pain and discomfort in the left elbow dating back to the period of time where he worked for a different employer than the work he did now, and that he notified his employer of the pain and discomfort at that time. The applicant was diagnosed with lateral epicondylitis on December 3, 1997, and Dr. Lewis opined that the applicant's work prior October 3, 1997, was the cause of his left elbow problems.

It is true that Dr. Lewis checked all three boxes for causation on the WC-16-B including the box which asserts that the applicant suffered from an occupational type injury, and that his work for the employer was at least a material contributory causative factor in the conditions, onset or progression. The employer did not present any contradictory medical evidence to establish that the applicant's left elbow problems were due to his subsequent work in landscaping. The ALJ appropriately noted that the employer did not call any witnesses or offer any exhibits, and that although the applicant admitted that his left elbow symptoms continued during his employment with the landscape company and in fact grew worse, the employer did not submit any expert medical opinion establishing that the applicant's employment with the landscape company was a material contributory causative factor.

Dr. Lewis's report meets the minimum to establish that the applicant suffered a work injury. It is clear from Dr. Lewis's report that he believes that the applicant's left elbow problem is work related and there is no evidence to indicate otherwise. The applicant credibly testified that he developed the left elbow problem while working for the employer performing tasks of a painter, labeler and packer. The applicant testified that between June 1997 and October 1997 he suffered daily left elbow pain while at work, and it would only subside after he left work and took pain medication, and that of the three jobs the painting job bothered his left elbow the most.

Although it would have been helpful if Dr. Lewis had checked only one box for causation, the commission does not find that Dr. Lewis's WC-16-B is insufficient to establish causation for the applicant's left elbow problems. The essence of Dr. Lewis's report is that the applicant has suffered a work related left elbow injury due to his work for the employer prior to October 3, 1997. Given the applicant's testimony as well as Dr. Lewis's treatment notes and Dr. Lewis's WC-16-B, the evidence was sufficient to establish that the applicant suffered an occupational disease type left elbow injury with an injury date of October 3, 1997, due to his work for the employer. The employer had every opportunity to have the applicant examined by a physician of its choosing if it believed that the applicant's injury was due to some other cause. However, the employer presented no contradicting medical evidence in this case, and the commission agrees with the administrative law judge that without such medical evidence the administrative law judge could not find that the applicant's employment with the landscaping company had any relevance to the his left elbow condition. Therefore, the applicant was appropriately awarded the treatment expenses in this case.

cc: Attorney David L. Weber


[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/07/16